"Will he do better in the future? He can join my dissents!" Breyer replied with a chuckle.....

Breyer self-consciously embraced the mantle of restraint. "To a very large measure, judges have to be careful about intruding in the legislative process," he said. "[R]uth and I have been among the ones less likely to strike down laws passed by the legislature, and, by that measure, we're not very activist." Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.

Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. "The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That's a strong basis." Liberals, in fact, could have reconciled their commitment to precedent and judicial restraint by upholding the partial-birth law while insisting it include a health exception. But no one is consistent in every case; and the activism of liberals here was an exception, not the rule.

Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint. Conservatives have responded to this embarrassing turnabout by trying to rob the term of any neutral meaning. In a series of unintentionally hilarious editorials, The Wall Street Journal praised the Roberts Court for "restoring business confidence in the rule of law and setting limits on the tort bar and activist judges." Spare us the twistifications. For more than 50 years, conservatives have insisted that judges should defer to legislatures and let citizens resolve their disputes politically. But, at the very moment they consolidated their Supreme Court majority, they have abandoned this principle and embraced the activism they once deplored. I hope that Chief Justice Roberts, over time, will achieve his welcome goal of transcending the Court's divisions and helping conservatives rediscover the virtues of modesty and deference. But, for now, the party of judicial restraint has a convincing spokesman in Justice Breyer.

I like judicial restraint myself, and I think Breyer actually does deserve the mantle of restraint as much as any of them. Of course, he doesn't keep it on all the time. Rosen conveniently -- and unintentionally hilariously -- declines to mention abortion rights and all sorts of other cases where Breyer votes on the side of individual and minorities and against the choice of the majoritarian political process. It wouldn't be much of a Constitution if the political choice always won. But it's good to have someone on the Court who will openly express the philosophy of restraint.

ADDED: Wait! Rosen does mention the abortion case in the middle paragraph there. Well, then he contradicts himself in his final paragraph. So Rosen conveniently -- and unintentionally hilariously - forgets his previous paragraph.

30 comments:

The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.

It has always flummoxed me that anyone can realistically see McCain Feingold as NOT being a complete run around 1st Amendment guarantees of free speech.

I have socially liberal friends who, while being adamantly pro-choice, do agree that Roe v. Wade was a twisted judicial wish list, a reading of something not plainly in the Constitution. While not wishing for Roe to be overturned, they are at least intellectually honest about understanding the reason it may one day be: it cannot reasonably be found in the Constitution.

Almost everyone of those liberal friends also recognize the plain reading of the 1st Amendment and accept that, at best, most of McCain Feingold is on borrowed time.

Thank you for recognizing the increasing speed with which The New Republic is marching towards complete silliness.

This conservative used to subscribe to The New Republic, The New Yorker, and The Atlantic Monthly. Now only The Atlantic Monthly.

The Atlantic has continued it's center/left prose and attitude, and, though I may dislike the tenor of some articles, I still learn things about the world from them.

Both The New Yorker and The New Republic have skewed more to the left since Bush came to office, which is okay. But the constant choice of silly tangents and attack points from such talented writers as Rosen is so curious, I just can't follow them anymore.

But only to an extent, right? After all, under the heading of "The False Virtue of Restraint" (emphasis added) you observed that judicial restraint "emerged along with normative and pragmatic reasons for supporting it" (which suggests the boundary of restraint existing only as far as normative and pragmatic assesment might counsel inaction, a funny sort of "restraint"), that a Justice who "ma[d]e judicial restraint the starting point for all legal analysis ... [would] contravene[] the basic duty of the judiciary 'to say what the law is,'" and most importantly of all, because Congress sometimes overreaches (I would say is institutionally predisposed to overreach), and the court can provide the brake eliminated by the 17th Amendment (my characterization not Ann's) "[t]here is something perverse about characterizing ... the Supreme Court [] as restrained when its inaction empowers another branch of the national government." Althouse, Enforcing Federalism After Lopez, 38 Ariz. L. Rev. 793, 812-3 (1996). So - surely two cheers for judicial restraint, Ann?

"Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena."

This attitude is precisely why politics and the legislative process in our day and age are especially sordid and illegitimate. Things have been made subject to the power of legislation and politics that have no business being so subject. Thus, everyone feels the need to get in there and fight and win, because so much is at stake. A majority, or one manufactured by expert politickng, can take things that rightly belong to us to serve their interests, and this goes by the name of democracy. In a better government, one that knew its rightful limits, politics would be a lot less important and interesting, engendering yawns rather than outrage, and people could pay more attention to the simple business of trying to live a good life.

B's 7:01 PM point is right on the money - like the arguments about judicial activism that start from a redefinition of that term, Rosen starts from a disingenuous (he's too smart to claim he just doesn't understand) description of legal conservatism, and follows that flawed premise to its logical mistaken conclusion.

I was kind of amused to read Breyer's reference to "the usual suspects," since I'd recently posited the popular beat combo "Justice Souter And The Usual Suspects - Justices Stevens (drums), Ginsburg (guitar) and Breyer (bass)."

I think people who accuse Roberts and Alito overruling precedent sub silentio should also pay attention to Breyer's observation that those judges "thought they weren't overruling" those precedents. If Breyer presumes good faith, so should court watchers. Even if one agrees that Stenberg, Flast and McConnell ought to be overruled (and they should), that does not mean that Carhart, Hein and WRTL are disingenuous in avoiding so doing.

bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena

This is utter crap. Even a casual examination of judicial nominations, Supreme Court and otherwise, will demonstrate that liberals have long depended on the courts to win the battles they cannot win in the political arena.

Show me the liberal nominee who has been "Borked". You can't find it.

Show me the conservative counterpart to the 9th Circuit Court of Appeals.

Show me the conservative president who has tried to pack the Supreme Court to ensure his wish list is ruled constitutional.

As I've said earlier, I've done an analysis of Supreme Court nominations, and it is quite clear that liberals depend on control of the judiciary to win battles they otherwise can't.

Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena.

I'll believe *that* line of hooey when the Democratic Party advocates overturning Roe v. Wade and letting the state and federal legislatures decide the legality of abortion.

Until then, the only difference between the two sides is *which* topics they oppose letting people vote on.

I have to laugh at Justice Breyer's hubris. He wasn't saying this when he was on the majority side of 5-4 decisions. Moreover,he has no idea of what the law of unintended consequences IS...,let alone what it DOES to good intentioned people like himself,Justice Ginsberg... OR to our country. The time is upon us when all of this blather in the (2) contentment/comparison realm will take a back seat to the (1) survi- val realm/instinct. And then where will the feminists and liberals like Justices Breyer,Ginsburg.... ....be ?

After reading some of the typical and relentlessly boring and annoying right-wing reactionary comments to this post, I've come to the conclusion that the U.S. Constitution itself has to be extensively amended. A right to privacy needs to be make explicit, since the right thinks it's not already in the Constitution. Might as well make abortion a federal right as well to shut up the religious right and Ann's bloggers for good. Those bloggers can then dedicate themselves to charitable work for which I'm sure they're longing. Bring back the ERA, to guarantee equal pay for equal work for women and minority groups. Stick Gay marriage somewhere in the 1st Amendment, just to further annoy the right-wing haters. Outlawing corporate donations and politcal influence via lobbying that illegitimately makes a mockery of democracy needs to be enshrined in the constitution as well - no McCain/Feingold needed. Taxing the super rich to make them no longer super rich needs an immediate and permanent place in the U.S. Constitution as well; they have way too much money. Putting idiots like Clarence Thomas on the court should result in an immediate death sentence for all those who were responsible for the dastardly deed and horrid consequences of such malevolence and idiocy. (As an aside, why do you think male starts the word malevolence?) The Republican party needs to be outlawed permanently as well for putting such a horrible, evil and incompetent man as Bush into office. Since I'm generous, all those who voted for Bush twice should be allowed to commit suicide before they are taken out back and shot with their own gun, which also will be made permanently illegal in the NEW Constitution that I'm proposing for the first time right here on Ann's blog.

Where is the contradiction? Rosen is saying Breyer votes in line with bipartisan majorities in legislatures. There is a majority for core abortion rights in most states. The view gets more sophisticated once you get into frivolous or needless late-term abortions without parental notification. Hence, Breyer's activism in Carhart.

“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).

Leftwing Writer/Editor Michael Kinsley:

“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”

“The Right’s Kind of Activism,” Washington Post, November 14, 2004.

Just 2 of millions on "the left" who know that Roe is wrong.

Your idea of wanting to amend or change the Constitution is perfectly acceptable. The Founders were smart enough to include 2 ways: By amendment or by Constitutional Convention. Get to work, Trumpit.

I do get the sense from your reading, though, that you are the quintessential liberal: you desire to make everyone else follow your beliefs, and you want all of your beliefs codified into law and not be subject to the freedoms of Democracy.

In the last century ,most of the "thinkers" that thought that Democracy was a poor way to let people decide most issues for themselves were proud to take the labels Communists, Fascists, and Nazis.

A right to privacy needs to be make explicit, since the right thinks it's not already in the Constitution.

Sounds like a good idea to me.

Don't think that just because people realize a right ISN'T in the Constitution means we wouldn't be happy if it was. I think it would be nice if the Constitution forbade progressive income tax on equal-protection grounds... but it doesn't.

Besides, the left-leaning Justices don't really believe there's a right to privacy in the Constitution either, or they'd have overturned the anti-prostitution laws back when they had a majority. What they believe in is a right to do things acceptable to the Left, in private.

Trumpit - what in the world would these sheep have the bleat about? If you take away Roe some would wither in the vine. You'll notice that the getgo comment ws on McCain Feingold and the first amendment...we could amend that too so corporations and organizations become "citizens" with free speech guarantees, heck they could even own guns!

As to Bork getting Borked and Gahrie's "analysis"...one could say to the neo-Gops to stop sending up the Bork, Harriet Miers types and they won't get swatted out of the ball park..besides you got Clarence in..what's your beef?

Sometimes I think Ann puts a post like this up because it is like turning on the porch light and watching for moths.

Trumpit - why go through the trouble of amending the Constitution when you could just rely on the plain old legislative process? If you can't get a bare majority of legislators to make the laws you want, you're unlikely to get a constitutional amendment on the topic. If a majority of the populace doesn't support the policies you want, I suppose your only recourse in a democracy, at least if you're unwilling to engage the other side in some sort of mature and productive discussion, would be to kill everyone who disagrees with you - but (a) that's just dumb and (b) the right-wing nut jobs have all the guns.

As to Bork getting Borked and Gahrie's "analysis"...one could say to the neo-Gops to stop sending up the Bork, Harriet Miers types and they won't get swatted out of the ball park..besides you got Clarence in..what's your beef?

Don't look now, your ignorance is showing. (again)

Miers and Bork couldn't be anymore different. Judge Bork was a respected judicial scholar, well versed in Constitutional law. Miers was a legal administrator, completely over her head when it came to Constitutional law. The White House lawyers trying to prep her for her Senate hearings knew it was a hopeless cause.

And as for "Bork" types, Justice Ginsburg was the ideological counterpart of Judge Bork, and a leader of the ACLU to boot. She was more unresponsive than either Chief Justice Roberts or Justice Alito in her hearings. Only three Senators voted against her. Her nomination sailed through. Why? Because Republican Senators deferred to the President's right to nominate liberal justices.

My beef with the travesty of the hearing on Justice Thomas are just that. They were a travesty. Democrats and liberals everywhere should be ashamed of how they behaved during those hearings.

Let's look at the last four confirmations.

Ginsburg - 96-3Breyer - 87-9Roberts - 78-22Alito - 58-42

hdhouse, even you are smart enough to read those numbers, and see what they mean.

Breyer is modeling what Richard Posner calls the one-way ratchet theory of jurisprudence: when liberals control the court they should, consistent with their principles, treat the constitution as a "living" document and impose their policy judgments on the political branches and the people, but when conservatives control the court they should, consistent with their principles as interpreted by liberals, practice restraint, abide with (liberal precedent) and defer to the political branches.

You sir are so blinded by your zealotry you just don't get it do you? Who shot down Harriet Miers? Cheney's folks did or don't you read the news. Why? Well certainly incompetence but she wasn't on Cheney's list.

As to Bork. He was far past marginally acceptable and you and everyone who watched those hearings new it. As to Thomas, well look what you got and he got in, God knows why or how.

Alito's colleagues on the Third Circuit certainly didn't think he was a marginal choice. They showed up en masse to support him at his confirmation hearings, and spoke glowingly of him. Both Alito and Roberts were unquestionable home runs in terms of judicial acumen and temperament. Unless your only criteria for quality is that they agree with you, you're either disingenuous or woefully ignorant in your assessment.

You'll notice that the getgo comment ws on McCain Feingold and the first amendment...we could amend that too so corporations and organizations become "citizens" with free speech guarantees, heck they could even own guns!

LOL. Now that is funny. I'm serious. Quite witty. I love it.

I frankly don't know why more of my conservative friends don't loosen up just a little bit more. There are so many more tongue-in-cheek under-the-radar quips coming from the left in these comments that are often passed over. I know we all are passionate about our causes, but please - making the point with at least a bit of wit, as you did there, can keep the discussion going without boiling over into statements that lead to hate.

By the way, this conservative will be first in line for the midnight showing of The Simpsons movie on July 26.

Harry:"Bork ... was far past marginally acceptable and you and everyone who watched those hearings [k]new it."

Are you seriously suggesting that Robert Bork wasn't qualified to be on the Supreme Court? Are you kidding? I don't think you'll find many law professors, even those who bitterly disagree with everything Bork's ever said about ConLaw (they presumably agree with him on antitrust, as has the Supreme Court, which has over the years adopted everything Bork suggested), who would agree that he was unqualified. Or by "acceptable" are you using the metric "agrees with you and will produce results you like?"

Re various comments about right to privacy and abortion - it should be pointed out that it by no means follows that if the Constitution did guarantee an abstract right to privacy (which it doesn't) that abortion would be protected by that guarantee.

"Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. 'The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That's a strong basis.'"

I see. So sometimes he'll blindly defer to legislatures. Other times he'll just ("the only question") defer to past precedent. Which course will he follow? Whichever one most convincingly allows him to follow his own policy preferences.

And this is called judicial restraint?

Of course, given all the liberal court decisions of the Warren era, he'll probably defer to precedent more often then to legislatures in the "big" cases. But that can't work for him as a principled rule (respect precedent first, then respect the democratic will), since several New Deal decisions junked precedent in favor of majority will, and most seminal liberal judgments violated both.

I have no trouble with seeing an implicit 'right to privacy' underlying things like the Fourth Amendment's ban on "unreasonable searches and seizures". A 'right to be let alone', as long as you're not hurting anyone else. The crux of the abortion issue is, at what point does a fetus count as 'anyone else'?